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Tuesday, December 01, 2009

CCA calls David Dow on carpet for tardy capital habeas submissions

Tomorrow attorney David Dow and the Texas Defender Service, a noprofit which handles post-conviction appeals in death penalty litigation, will be called to account at the Texas Court of Criminal Appeals for filing a habeas brief for a death-row defendant past the 48-hour-before-execution deadline. The new rule was established in the wake of Sharon Keller's "We close at 5" debacle. Judge Keller has expressed her view that the Texas Defender Service has a personal vendetta against her and at times appeared openly hostile toward TDS in general and David Dow in particular. Thankfully Keller has said she would not participate in the hearing but the fact is her views are largely shared by other hard-liners on the court.

One imagines this may be quite a tense hearing, potentially. The case is the first one on the docket and they get started at 9 a.m. in the CCA chambers in Austin.

Just for me, I wish it hadn't been David Dow who was first to violate the new policy. His relationship with the court is already complex, confrontational, and incredibly personal. Basically these folks just don't like each other on a level that transcends any given issue. So there's a risk the CCA will set some particularly ugly precedent just to send a personal message to Dow, rather than calculate what's really the fair way to handle tardy, last-minute capital submissions.

I hope cooler heads will prevail, particularly in Judge Keller's absence, and the episode will be handled the same way it would, say, if Ted Cruz had been attorney for the accused. I suspect, though, that might not be how events unfold when Mr. Dow stands before them tomorrow. We'll see soon enough.

RELATED (sort of): From Chuck Lindell at the Austin Statesman, "Shoddy legal work alleged as execution nears," and see his online investigative series from 2006 on capital habeas writs titled "Writs Gone Wrong." Like Dow or hate him, he and TDS provide much better representation to their clients, from everything I hear, than some of the shockingly bad attorneys described in Lindell's series.

18 comments:

I appreciate, but am disappointed with your observation that elected CCA Judge(s) might behave differently in a case solely based upon the Attorney who is appearing before them. I know from a practical view you must be correct, but it's a sad, sad (perhaps naive) state of affairs.

If an attorney violates the rules of the court, sanctions follow. It is a fact of life in the legal business.

If Dow has a reasonable explanation, then nothing will happen. If not, then he will be sanctioned.

Besides, this rule isn't something that the CCA just thought up. It is based on the U.S. 5th Circuit rule, which requires that such petitions or motions be filed five days prior to the scheduled execution date. The CCA rule is much more lenient than that - and all he had to do is present a reasonable explanation.

Maybe Dow should consider following the rules, instead of grandstanding

Bluesy, are you referring to any particular "grandstanding" or is that just another, non-specific smear against somebody whose politics you disagree with? I'll bet when you "grandstand" you justify it as "zealous" advocacy for your clients.

Also, this is PRECISELY something the CCA "just thought up." They did it in reaction to all the national blowback over the "We close at 5" fiasco, it's not some longstanding rule modeled on the 5th Circuit.

Attorneys violate all sorts of rules of court -- discovery rules, decorum rules, tardiness rules -- without being "sanctioned," as you put it.

You don't have a short memory. You know damn well that one of your favorite CPS attorneys got away with the most outrageous conduct in Judge Walther's court not only was not sanctioned, but was given a pass, or a mulligen, or a mullet or whatever it was Judge Walther said he could have.

You know equally damn well that prosecutors who violate the Brady Rule are NEVER sanctioned.

Reading the Texas Lawyer article, it seems that the main deficiency concerns the lack of an explanation from Dow's cocounsel, not Dow himself. Since she's a relative newby, having only been licensed for a year, I admit to hoping the court may not beat her up too badly. And Dow did give a three-page explanation, although apparently the court wants to hear more.

As for the question of bias for and against certain counsel, anyone who practices before the CCA has seen examples of it - I've seen a prosecutor in a death case try to blindside the defense by filing an out-of-left-field pleading, completely unauthorized by the rules, at a very late stage. The court admitted it with scarcely a murmur, and over objection, rather than sanctioning him in any way. If one of the regular death penalty defense counsel had done that, I'm confident the motion would not have been allowed and the attorney would have been, at minimum, chastised.

TxBluesMan's assertion that sanctions follow a violation is simply inaccurate. One sees constant little rules violations - probably 99% of them inadvertent. It's only occasionally that the court rouses itself to do anything about it, even in death cases, when counsel are failing to comply with deadlines or otherwise messing up.

Surprising me not at all, both Grits and Doran don't see anything wrong in what Dow did.

Of course, what his client did was not brought up. Dow's client, Danielle Simpson and three others, kidnapped an 84 woman, tied her up and gagged her, weighed her down, and threw her in the Nueces River to drown slowly.

Dow should have also expected this from the Court. His basis for appeal had been heard and denied - a simple legal principle called res judicata, meaning basically that you don't re-litigate a matter after it has been decided, and especially in an inferior court.

He has also been known to poke a sharp stick in the side of the Court, such as the over-blown hoopla about what time the court offices close (5:00 PM) while knowing full well that there was an on-call justice to review after-hour emergency motions. He carries on about this (which could not be considered as 'zealously' representing his client, who had been executed already), and then testifies against one of the justices.

The 48 hour rule, very similar to that in the Federal 5th Circuit, was to address late filings such as this.

So what does he do? He files late, with a weak reason. There have been two attorneys that have filed late since the rule has been in place - and both have been called before the Court to explain themselves.

Could Grit's concern stem from the fact that Dow was one of the founders of the Texas Innocence Project? You know, the non-profit that was your employer until the grant money ran out? His bio is still listed on TIP's webpage, and he is a board member of the Texas Defender Service - which routinely calls the CCA "incompetent" and "unaccountable." Hmm. Poke a sharp stick at a sleeping tiger, and you are then surprised when it wakes up and comes after you?

As to Doran's statement of attorneys routinely violating rules of the court? Sure it happens - but when you are speaking about someone's life, it is more critical to take the rules seriously - because the attorney's mistake can cost the client his or her life. The court should look at the attorney's action more closely in these cases.

You should be applauding the CCA, not condemning them - if Dow can't get things done in a timely manner, maybe he shouldn't be representing death row clients.

Bluesy, as usual, you're spouting ridiculous accusations about which you know nothing. I have no relationship at all with Dow; I think I've met him once more than a decade ago. I'm not even a death penalty abolitionist. And if he was ever associated with IPOT (I wasn't aware), he was gone by the time they hired me. You're just conflating everybody you don't like and making me their embodiment, which is typical; your accusations that I'm concealing some conflict of interest are weak smears completely disassociated from reality.

As for whether Dow was "wrong," I never denied he missed a deadline. On the list of Great Moral Failings, that's pretty far down. Otherwise, as an attorney who represents cops accused of misconduct for a living, you of all people should recognize the distinction between a client's bad deeds and the character of their attorney. Is your character as twisted and misshapen as the worst client you ever represented? Should we hold you accountable for all their offenses? Apparently so, if you think WHO Dow represented should count against him regarding whether a deadline was missed.

Otherwise, this post doesn't "condemn" the CCA or say the rule shouldn't be enforced, you're just tossing out red herrings, as usual. Such behavior is not nearly so cute or clever as you seem to think.

Also, Bluesy, point to the link where Dow's bio is on IPOT's web page. I just ran a search and I don't find it. Here's their site, where is it? Or is that just something else you made up because it sounded good and since you're anonymous you won't be held accountable?

Here. According to the bio, he's still associated with it. I could be wrong, and if so, my apologies.

In any event, while you condemn CJ Keller, you apparently question why Dow is being questioned AND you misstate the facts anyway. Dow ISN'T the first that violated the rule - Gator Dunn (also of Houston) has already been called "on carpet" to explain his tardy filing - and was not sanctioned.

In any event, all of my clients were innocent and unjustly accused - I thought you knew that, ;p - and unjustly accused by heavy handed police administrators who were influenced by politicians catering to the liberal left...

That's not the group I worked for, TX. I'd tell you to keep your accusations straight, but you've been commenting here too long for me to think that might happen.

You're correct about Gator Dunn; when I wrote this that hadn't been reported publicly - my error. However, do you know what sanctions happened to Mr. Dunn? Did it match your predictions in this comment string?

On Nov. 25th, Texas Lawyer published an article on Dow's being called to show cause. You were aware of it, the first link you posted is in fact that very article.

In the article, it states:

"In a Nov. 28, 2008, order, the CCA directed K.S. “Gator” Dunn of the Dunn Law Firm in Conroe to appear at a Jan. 14, hearing to show cause why he filed an untimely subsequent habeas corpus writ application for death-row inmate Eric Cathey. Schilhab says the CCA did not sanction Dunn, who declines comment."

It had been reported publicly, by the very article that you cited. I made no predictions, I commented on what you linked to - if their reporting is inaccurate, you should let us know.

Second, the same article stated:

"Cochran says the CCA patterned its rule after a 5th U.S. Circuit Court of Appeals rule."

If one of the Justices on the CCA states that they modeled it after the 5th Circuit, in an article that you are citing, how are you claiming that "it's not some longstanding rule modeled on the 5th Circuit." (your comment on 12/01/09 at 4:52 PM)?

I took the time to really read the articles you linked to - and my comments were based on that, unlike, apparently your post and comments.

This is not your normal style of reporting - you normally do much better than that, but I fear that your animus towards the CCA colored your reporting in this case.

I just listened to a "Fresh Air"interview of David Dow. (His book, "Autobiography of an Execution" has just been published) He comes across as a rare Texas lawyer of genuine integrity and intellect. In the interview he refers to the appalling constitutional violations that his clients endure, and that the State of Texas deliberately overlooks. I've lived in Texas most of my 45 years and I can say that "I am ashamed of being from Texas". (Where have we heard that before?)Here is a link to the interview:http://www.npr.org/templates/player/mediaPlayer.html?action=1&t=1&islist=false&id=123491414&m=123495587

Full disclosure: I've had to hire a few lawyers in the past few years and I have no respect at all for them.

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